Zhang v. County of Monterey et al

Filing 196

Order re: Elements of Due Process Claims. Signed by Judge Lucy H. Koh on 6/6/2021. (lhklc2, COURT STAFF) (Filed on 6/6/2021)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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JACQUELINE ZHANG,
Plaintiff,

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Case No. 17-CV-00007-LHK
ORDER RE: ELEMENTS OF DUE
PROCESS CLAIMS

v.
COUNTY OF MONTEREY, MONTEREY
COUNTY RESOURCE MANAGEMENT
AGENCY, and MONTEREY COUNTY
PARKS DEPARTMENT,
Defendants.

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Plaintiff Jacqueline Zhang (“Plaintiff”) sues Defendants County of Monterey, Monterey

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County Parks Department, and Monterey County Resource Management Agency (collectively,

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“the County”) for causes of action arising out of the County’s termination of Plaintiff’s

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employment with the County. Two of Plaintiff’s causes of action will be tried by a jury: (1)

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Plaintiff’s fourth cause of action for deprivation of property without due process of law in

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violation of the Fourteenth Amendment of the United States Constitution, brought pursuant to 42

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U.S.C. § 1983, and (2) Plaintiff’s sixth cause of action for deprivation of property without due

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Case No. 17-CV-00007-LHK
ORDER RE: ELEMENTS OF DUE PROCESS CLAIMS

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process of law in violation of Article I, Section 7 of the California Constitution.1 For the benefit of

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the parties, the Court sets forth the elements for the causes of action to be tried.

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I. DISCUSSION
The Court discusses in turn each of the causes of action to be tried: (1) Plaintiff’s due

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process claim under the United States Constitution, and (2) Plaintiff’s due process claim under the

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California Constitution.
A. Plaintiff’s Due Process Claim under the United States Constitution

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Generally, to bring a federal due process claim, the plaintiff must show: “(1) a deprivation

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of a constitutionally protected liberty or property interest, and (2) a denial of adequate procedural

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protections.” Brewster v. Bd. of Educ., 149 F.3d 971, 982 (9th Cir. 1998). In a case brought by a

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United States District Court
Northern District of California

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discharged employee, the employee must show: (1) the deprivation of a property right in

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continued employment, and (2) the denial of appropriate procedural protections during

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termination. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 542 (1985).
Accordingly, first, Plaintiff must show that she was deprived of a property right in her

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continued employment. To show that she was deprived of a property interest in her employment,

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Plaintiff must show that she was a permanent employee and could be dismissed only for cause.

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“Public employees who may be dismissed only for cause possess a property interest in their

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continued employment.” Walls v. Cent. Contra Costa Transit Auth., 653 F.3d 963, 968 (9th Cir.

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2011); Dorr v. Butte County, 795 F.2d 875, 876 (9th Cir. 1986) (citations omitted) (“[A]

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‘permanent employee,’ dismissible only for cause, has a property interest in [her] continued

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employment which is protected by due process.”). However, employees who can be dismissed

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with or without cause do not have a protected property interest in their employment. See Walls,

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653 F.3d at 968; Dorr, 795 F.2d at 876 (stating that “a probationary (or nontenured) civil service

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employee, at least ordinarily, may be dismissed without a hearing or judicially cognizable good

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cause”).

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Plaintiff’s one remaining cause of action, Plaintiff’s petition for writ of mandate under California
Code of Civil Procedure § 1085, will be judicially adjudicated. See ECF No. 187.
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Case No. 17-CV-00007-LHK
ORDER RE: ELEMENTS OF DUE PROCESS CLAIMS

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A public employee is not entitled to due process based on deprivation of a property interest
in a position unless that employee has a “legitimate claim of entitlement” to the position. See

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Board of Regents v. Roth, 408 U.S. 564, 577 (1972). That entitlement “must be granted by state

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law,” Koepping v. Tri-County Metropolitan Transp. Dist. of Oregon, 120 F.3d 998, 1005 (9th Cir.

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1997), or “some other independent source.” Faurie v. Berkeley Unified School Dist., 2008 WL

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820682, at *8 (N.D. Cal. Mar. 26, 2008). “Under California law, county charters, rules and

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regulations generally determine whether there is such an entitlement.” Weisbuch v. County of Los

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Angeles, 119 F.3d 778, 780-81 (9th Cir. 1997). Thus, an “oral representation of [Plaintiff’s]

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supervisors,” “untethered to specific positive law, is insufficient to create a property interest.”

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Faurie, 2008 WL 820682, at *8. “In other words, expectations based on oral representations,

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United States District Court
Northern District of California

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employment history, or positive evaluations are not sufficient to give the Plaintiff a property

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interest in [her] public employment.” Id. at *9. Accordingly, Plaintiff may not use an implied-in-

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fact contract claim to establish that she had a property right in her position. In addition, Plaintiff

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must show that she was deprived of the protected property interest in her employment, such as by

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being discharged.

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Second, Plaintiff must show that she was denied adequate procedural protections.

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Brewster, 149 F.3d at 982; Loudermill, 470 U.S. at 538. “Due process requires that any

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deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing

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appropriate to the nature of the case.’” Wall, 653 F.3d at 968 (quoting Mullane v. Central Hanover

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Bank & Trust Co., 339 U.S. 306, 313 (1950)). The United States Supreme Court has held that due

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process “requires ‘some kind of a hearing’ prior to the discharge of an employee who has a

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constitutionally protected property interest in his employment.” Loudermill, 470 U.S. at 542

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(quoting Roth, 408 U.S. at 569–70); see also Clements v. Airport Auth. of Washoe Cty., 69 F.3d

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321, 332 (9th Cir. 1995) (holding that “the denial of a pre-termination hearing is a constitutional

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violation sufficient to support damages”). “[T]he pretermination ‘hearing,’ though necessary, need

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not be elaborate.” Loudermill, 470 U.S. at 545. A permanent public employee must receive “oral

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or written notice of the charges against him, an explanation of the employer’s evidence, and an
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Case No. 17-CV-00007-LHK
ORDER RE: ELEMENTS OF DUE PROCESS CLAIMS

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opportunity to present his side of the story.” Id. at 546. Furthermore, the employee must also

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receive a full post-termination hearing. Id. at 546–47 & n.12.

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Finally, because Plaintiff is bringing her due process claim pursuant to 42 U.S.C. § 1983,

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Plaintiff must show municipal liability under the United States Supreme Court’s decision in

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Monell v. Department of Social Services of New York, 436 U.S. 658 (1978). In the Court’s June 4,

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2021 Order re: Monell liability, the Court explained what Plaintiff must establish to show

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municipal liability. ECF No. 188. Specifically, the Court held that Plaintiff must show one of the

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following three bases for municipal liability: (1) “a municipal employee committed a

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constitutional violation pursuant to an expressly adopted official policy or a longstanding practice
or custom which constitutes the ‘standard operating procedure’ of the local government entity”;

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United States District Court
Northern District of California

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(2) the decision-making official was a final policymaking authority; or (3) an official with final

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policymaking authority either delegated the authority to, or ratified the decision of, a subordinate.

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Ulrich v. City & County of San Francisco, 308 F.3d 968, 984 (9th Cir. 2002) (quotation omitted).

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B. Plaintiff’s Due Process Claim under the California Constitution
A due process claim under Article I, Section 7 of the California Constitution requires: (1)

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the deprivation of a protected property or liberty interest, and (2) the denial of adequate procedural

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protections. See Skelly, 15 Cal.3d at 206, 208 (considering whether the discharged employee had a

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property interest in his employment and whether the discharged employee received adequate

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procedural safeguards).

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Accordingly, first, Plaintiff must show that she was deprived of a protected property

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interest. In order to show that she had a property interest in her employment, Plaintiff must show

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that she was a permanent employee, not a probationary employee. “The California civil service

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employment scheme confers upon permanent employees ‘a property interest in the continuation of

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[their] employment which is protected by due process.’” Roe v. State Personnel Bd., 120 Cal. App.

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4th 1029, 1040 (2004) (quoting Skelly, 15 Cal. 3d at 206). By contrast, in California, non-

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permanent employees “serve at the will of the employer and therefore do not possess any property

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interest in their continued employment.” Mendoza v. Regents of University of California, 78 Cal.
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Case No. 17-CV-00007-LHK
ORDER RE: ELEMENTS OF DUE PROCESS CLAIMS

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App. 3d 168, 173 (1978); accord Walls, 653 F.3d at 968 (stating that non-permanent employees in

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California can be terminated at any time subject only to the limits of public policy). In addition,

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Plaintiff must show that she was deprived of the protected property interest in her employment,

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such as by being discharged.

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Next, Plaintiff must show that she was deprived of adequate procedural protections.
The California Constitution requires that “the employee be accorded certain procedural rights

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before” removal. Skelly, 15 Cal.3d at 215 (Cal. 1975). Specifically, a discharged employee must

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receive “notice of the proposed action, the reasons therefor, a copy of the charges and materials

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upon which the action is based, and the right to respond, either orally or in writing, to the authority

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initially imposing discipline.” Id. The employee must have a meaningful opportunity to respond to

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United States District Court
Northern District of California

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the notice of the proposed action. Kempland v. Regents of University of California, 155 Cal. App.

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3d 644, 649–50 (1984) (concluding that employee’s due process rights were violated because the

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employee’s written response to the notice of intention to dismiss was not considered before he was

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terminated). In addition to these pretermination procedural rights, “[a] public employee is entitled

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to a full evidentiary hearing after the disciplinary action is imposed.” Duncan v. Dep’t of

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Personnel Admin., 77 Cal. App. 4th 1166, 1176 (2000); see also Skelly, 15 Cal. 3d at 215 (holding

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that “due process does not require the state to provide the employee with a full trial-type

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evidentiary hearing prior to the initial taking of punitive action”).

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IT IS SO ORDERED.

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Dated: June 6, 2021
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LUCY H. KOH
United States District Judge

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Case No. 17-CV-00007-LHK
ORDER RE: ELEMENTS OF DUE PROCESS CLAIMS